HomeMy WebLinkAboutCOM 1025.001 1996-1998
V or
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J. CURTIS TYLER, Ill Tel: (808) 961-827
Cmoicfhrumrbcr Fax: (808) 969-3291
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E OF'HI i
C'OONITY COUNCIL
Count[/ of Hawaii
! laeoaii County Building _
25 Aupuni Street -
Hilo, Hawaii 9t,720
November 13, 1998
Memorandum:
TO; James Y. Arakaki, Chairman
Hawai'i County Council
FROM: J. Curtis Tyler, III
V
Council Member (District 8) ~°s„ motif
RE: Communication No. 1025, Condo i m Property Rgi me
In accordance with the discussion at the 10/21 Council Meeting regarding the referenced
subject, I am providing copies of additional background materials on S.B. NO. 3195
S.D.1 and H.B. NO. 3265 H.D. 1.
Please circulate copies of these materials to the other Council Members. Thank you for
your help in this matter. If you have any questions please call me at 326-5684.
Attachments
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77-6399 Nalani St., Suite l-A Kailua-Kona, Hawaii 9n740 Kona Te[ephonc (808) 326-5684 Fax: (808) 326-5697
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J. CURTIS TYLER, III ` Y
Tel: (808) 961-827:1
Councilmember i
Fax: (808) 969-3291
1lE 0~•N'•}
COUNTY COUNCIL
County of Hawaii
Hawaii County Building
March 5, 1998 25 Aupuni Street
Hilo, Hawaii 96720
Honorable Cal Kawamoto and Honorable Norman Sakamoto,Co-Chairs
And Members of the Committee on Transportation
& Intergovernmental Affairs
The Senate, Room 212
State of Hawai'i
State Capitol
Honolulu, Hawai'i 96813
Dear Co-Chairs Kawamoto, Sakamoto and Members:
SUBJECT: SENATE BILL 3195. S.D.1
RELATING TO CONDOMINIUM PROPERTY REGIMES
I have reviewed the referenced bill and sumit this testimony in strong sunnort of the intent
and stated purpose of this legislation.
This bill would make it clear that all condominium property regimes (CPR) are subject to
county zoning and subdivision ordinances and rules. While it is clear that, for CPR
projects in a Multiple Family Residential (apartment type structure) zoned districts, the
number of units allowable must comply to county codes, there are no clear provisions for
properties in the Agricultural zoned districts. This has caused a proliferation of multiple
units and structures on parcels in the agricultural district, and the process to address
adequate infrastructure required through the subdivision code has not been followed.
This practice, in turn, has led to significant local controversy, costly legal challenges, and
the inability of Hawai'i County to properly address the impacts these kinds of projects
have on the community in which they are located. There is a widespread feeling among
Kona residents that the establishment of the CPR under H.R.S. 514A did not envision this
result.
77-6399 Nalani St., Suite 1-A Kailua-Kona, Hawaii 96740 Kona Telephone: (808) 326-5684 Fax: (808) 326-5697
Co-Chairs Kawamoto & Sakamoto
3/5/98
Page 2
For these reasons, it is necessary to amend this statute to prevent its further unintended
application. The referenced bill clearly addresses this, and the proposed amendments
appear to provide a reasonable resolution.
Thank you for the opportunity to comment on this important matter. I request your
favorable consideration and passage of SB 3195, S.D.1, to make the CPR laws consistent
with the underlying County land use laws.
Sincerely -
C is Tyler, III
Co it Member -District 8 (North Kona)
County of Hawai'i
Tel: (808) 326-5684 Fax: (808) 326-5697
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STAND. COM. REP. NO.
Honolulu, Hawaii
Ff8 2 U 1998
RE: S.B. No. 3195
S.D. 1
Honorable Norman Mizuguchi
President of the Senate
Nineteenth State Legislature
Regular Session of 1998
State of Hawaii
Sir:
Your Committ.ae on Governm~=L Operations and Housing, to
which was referred S.B. No. 3195 entitled:
"A BILL FOR AN ACT RE`ATING TO CONDOMINIUM PROPERTY
REGIMES,"
begs leave to report as follows:
The purpose of this bill to ensure that projects created
and Established as condominium property regimes comply with the
provisions of underlying city and county zoning, subdivision, and
development ordinances and rules.
The Office of Plarxning of the Department of Business,
Economic Development and Tourism, Real Estate Commission,
Planning Department for the county of Hawaii, Plan To Protect,
Hawaii's Thousand Friends„ Maunawili Cn_ttsnunit}, Association, Kona
Farmers Alliance, Kona Community Action Group to Address
Flooding, a council member of the county of Hawaii, and an
attorney submitted testimony in support of this bill. The City
and County of Honolulu submitted testimony in support of this
bill and noted some concerns.
Your Committee finds that there is a loophole in the current
condominium project regime (CPF.) laws that allow CPR developers
to circumvent county zoning, subdivision, and development
ordinances and rules. This bill prevents future CPR developers
from doing so.
1998-0772 SSCR S14A SB319S SDI
STAND. COM. REP. NO, A224
Page 2
Your Committee has amended this bill by making technical,
nonsubstantive amendments.
As affirmed by chc record of votes of the members of your
Committee on Governmenz Operations and Housing that is attached
to this report, your Committee is in accord with the intenL and
purpose of S.B. No. 3195, as amended herein, and recommends that
it pass Second Reading in the form attached hereto as S_B.
No. 3195, S.D. 1, and be referred to the Committee on
Transportation and intergovernmental Affairs.
Respectfully submitted on
behalf of the members of the
Committee on Government
Operations and Housing,
ROBERT DA, Co-Chair
H LL K. ZGE, Co-Chair
1998-0772 SSCR SDiA SB3195 SDI
The Senate
Nineteenth Legislature
State of Hawaii
Record of Votes
of the
Committee on Government Operations and Housing
Measure: Committee Referral: Date:
31Q1~ iA 2- (b,c
? The committee is reconsidering its previous decision on this measure.
? Pass, unamended Pass, with amendments
? Hold ? Recommit
The Recommendation is to.
? Advise and Consent ? Not Advise and Consent
? Advise and Consent with Exception
Code Members A es A es WR Nays Excused
103 9UNDA, Robert( C )
109 IGE, Marshall (C)
TI -5 MATSUNAGA, Matt
101 ANDERSON, Whitney
TOTAL 3 I
Recommendation:
Adopted ? Not Adopted
Chair's or N ' nee' Signature,
Distributi
Original - omm tlee Y@Ilovd • Clerk's Othce Pink - Drafting Agency
STAND. COX. REP. NO. t 5 -98
Honolulu, Hawaii
r
to , 1998
RE: H.B. No. 3265
H. D. 1
Honorable Joseph M. Souki
Speaker, House of Representatives
Nineteenth State Legislature
Regular Session of 1998
State of Hawaii
Sir:
Your Committee on Water and Land Use, to which was referred
H.B. No. 3265 entitled:
"A BILL FOR AN ACT RELA'T'ING TO CONDOMINIUM PROPERTY
REGIMES,"
begs leave to report as follows:
The purpose of this bill is to specify that projects created
as condominium property regimes (CPRs) are subject to the
provisions of underlying county zoning and county subdivision and
development ordinances and rules. This bill also provides for
county review of CPRs prior to recordation or the issuance of a
final public report under Chapter 514A, Hawaii Revised Statutes
(HRS).
Your Committee received supporting testimony from the Office
of Planning, the Real Estate Commission, the County of Hawaii
Planning Department, the Sierra Club, the Kona Community Action
Group to Address Flooding, Plan To Protect, the Kona Farmers
Alliance, and several concerned individuals.
According to testifiers, there are currently no clear
restrictions in the agricultural district to require that the
number of allowable units must comply with county zoning codes
and subdivision ordinances. As a result, there is a
proliferation of multiple units on parcels within the
agricultural district. Due to their inconsistency with the
county regulations, these units oftentimes lack adequate
infrastructure. This bill is intended to allow the counties to
more effectively enforce their zoning and subdivision regulations
by closing a "loophole" in Chapter 51AA.
HSCR WLU HB3265 HD1
JW9,-'10-bU IU I"KUI'1•tIUUu n L," RKMO Ux'r IVn ILIuUU oUU U`fWa I-
STAND. COM. REP. NO. -98
Page 2
Your Committee has amended this bill by making technical,
nonsubstantive revisions for purposes of style and clarity.
As affirmed by the record of votes of the members of your
Committee on Water and Land Use that is attached to this report,
your Committee is in accord with the intent and purpose of H_B.
No. 3265, as amended herein, and recommends that it pass Second
Reading in the form attached hereto as H.B. No. 3265, H-D. 1, and
be referred to the Committee on Consumer Protection and Commerce.
Respectfully submitted on
behalf of the members of the
Committee on Water and Land
Use,
DWIGHT TAKAMINE, Chair
HSCR WLU HE3265 HD1
u ..._i.. ..u V. Sul lli Uv.,O lOU CiY 411 rmu •1l:]
State of Hawaii
House of Representatives
The Nineteenth Legislature
Record of Votes of the Committee on Water and Land Use
BiNResoltdion No.: Date:
hn 32665 2/10/93
Comuutiee Referral: O The committee is reconsidering its
W-V previous decision on this measure.
The recommendation is to- Cl Pass, unamended Pass, with amendments
? Hold 0 Recommit
WLU Members Ayes Ayes (WR) Nays Excused
1. TAKAMINF, Dwight Y. (c) 405
2. HAMA WA Eric G. VC 250 /
3. GARCIA r R. 240
4. GOODENOW Ken 241
6. KANOLiO, Ezra R. 285 /
6. MORIHARA David 325
7. YOS A Terry Nui 460
8. MEYER Colleen 320
9. THIELEN nthia Hen 420
TOTAL
The measure is: ? Passed, unamended ssed, with amendments
D Recommitted
? Held If joint referral, , did not support recommendation.
committee acronym(s)
Vice Chair's or designee's signature-
r
Distribution: 0 it passed, attach to Committee Report Q Data Entry
Record of Votes WLU
lLIL_1414 I LIU UUUU ODUUUUUUU r
i i 0f NJ MINJ.CAYETANO
h, h" ' j~ •4.'~i. SEMF MAYA
OIPEG70P
BgADIEY J. MOSSMAN}
Y I ? DEPA TMEN r OF BUSINESS, I MPU7YaHFGTOR
!oiR[crc ~.ICxru:t OF PIeQGj+G }
ECONOMIC DEVELOPMENT & TOURISM RICKeaN04
OFFICE OF PLANNING '(808) 587 2846
235 South'Beretan.: St•L.e', 6th Flr 11 r wu, Hawaii 06813 Fax:: (808) 687.2824
j.
Mailing Addresc, PO Eos 2339, Hcno%,lu H wu 96804
Statement of
RICK EGGED j
Director, Office of Planning 9 ~Dep arm c nr of Busini Lconornic Development, and Touri?m
before the
HOUSE COi IMIl l Ef, ON CONSUMER PROTECTION AND ~OI1TERCE
Thursday, February 26. 1998, 6:00 P.M.'I]
State, Capitol, Conference Boom 325 {a
in consideration of
HB 3265, HD 1 {
{2ELATING TO CONDONIINIUIII PROPERTY' RECI IES, }
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Cll<}ir steno, an<< ,\)en;b,-rs Of H:+us:: Committee, on Consumer rotect'on tuui
I. I Commerce'
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H13 3265 HD 1 ,inerids 514A to clarify that prolccts crcat d as I~
condomtniul m piupet ty I,: panes arc su1j ct to county zolung, subdivision, rid de aloprn}:ot
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ordinances and piles, and provides for cinwty reviaw of Such projects pt'to}• to recordation
or the issu~tica of a final public IepCrt L:111C Chapter 514A. "
Th Ie Office: of Phoning support,, tic intent of d,is bill. We believe hat sunutory '
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clarificatiCjt is n edcd to address cent rr rs chat the. condominium property egime is bcI4
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used tie, avqul ei.+unt}' z,_t;iug and si.rbu,`::sivn rcquiren-,ent. One oliserved,practicc is the ji
creation rutd sale of LI{ rt;tleuts i:,ten 'c rl f?r .t id`r.nzial use, in excess of , t17lnumbvr of units j
9
allowablo under county zoning. This .r,:,'^.ls the prospective buyer and the adjacent
conununity in a numb: c of ways. it
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Fir there is uo certainty fur the c• ntdominium purchaser that the eeess ry
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rt j development permits and approvAt mill be granted by Utz county. SCCCin , it ha1 the effect
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ar of shiftirig~the burden of development impa::4c to the surrounding i;omniu ity an the
1.• County, since development and ircrpr"n anent of these apattinents tiiay tics r without pit~r
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county revizty as to tut suitability of ttc sit-, for such development, in to s of i impact
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on truffic,'drainage, ind othzr imp cir t s vies. Third, it undermines the inicnE and
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function of county, zoning to cont-ol nail c; and separate conflicting )and uses. This
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issue is oflp<rticular cor;cerri it) ar a: zoned for agricultural use, as this practice has allowed
lz:, for residential development of agricultural lands at dznsities above that intended 7der
Courtly coning to protect and foster wi6cultural activity, I
The lack of clarity in thr, sr-- tuic as to jtnisdiction over projects crehted under State
law has hindered county effortj to this i>suc. Claarly, State law ~ nd effprts to
provide flexibility and affordability in Uta development process should 'ncit fnutr;uC the
legitimate, fuuctioni of the couotics to .,-)f-,,guard dtz public health, safe~y,,arid wr.ifare of
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individual homeowners and the. This bill would provide the a ladficluion
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heeded tti avoid such cl,urfliet br.rv . , Statc and county laws and regulations.
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1'I 1111o OifiQe recornrncnds the bill bc.:,pp. Lx'Cd With autendmentslth;tt might further
clarify th int]nt of CL,,, hill. Tri a m°, admcnts ale attached to our testinia Y.
'Mark you fug tl;e oppnrit.n;ity to provide nicest comment's.
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PROPOSED Ar1,F..NDMENTS TO HB 3265, HD,i
l.. Tire Office strrmgty recomrn, ads that she provision on page 6, lin s 10-?t3, ttr.;
requiring a statement from d,e cannty certifying a projects confo nance with
county zoning, be amended in the. following manner. Lines 10-2 shoul be
amended to r:-quire an affida':rt of the declarant stating that the pr q'"posed roject'and
all its phases confornn to county zoning and applicable davclopnieht ordi antes and i,
codes, including building co,les where existing sttuctures'are beigg converted to s
ccndominiun s. The affidatt, should also provide. a summary of pcrUnegt project i l
mtortnauor t x map key; z_nung and number of allowable units;ltht', number oQ I"
StructuLes and aparurients, and their uses created by the project, h"clusivtt~; of uniis
w•jth reservation rights for future development; any county restric ens ot1
dgvelopm -nt Ur use of ill-. -vpa,tr,etats or property; and the existing items of) lines l~
1{ 23.
Sµch an ani ndinnc_nt would 1~,:, er require county, review priorto rec rdation.
The annendn-, nm as proposed o-A also facilitate and speed county nevi w of airy
pritposcd project by having all the pertinent zoning and development inf rntatioh in
a readily accessible form for rv.viow.
2. 'I'lea Office also strongly e tnnacends that the last two seniencgs of die new 514A
section (Pg 1, lint 16 - l7S line l) be re )laced with the following' language: '
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Tlie tc>t;Jn,n:h21- of p`ii!n-t,~_ f,~t nrrl intcndEd f u residential jsrr fill hays
a t a!7y •7Worer] in; lu m of p11-2p,11 me11 E10 h o conveyed with feservat~,itAlts i
1..
i1 lthr, lrnDr(i%_C exp, to L. C()~ art. nr rC - i`1 'd tl (nonresidential ilpiftnlen4 for 'drntial tin er ll no txi,~d tlir number of dttelhng units a11oveer yl7ned lot '
ar~eord hvby the extstmg und,rlyi 7,r aOtn tv nmin i.
Phis language provides ]:;r gr ater clarity with respect to the integqt of tli6 proposed
language, t that the total numbet of units contemplated for dcvclopm nt on die
pfopetty over the life of a project is to be in conformance with'counly zoning. This '
would promote full disclosure to hods prospective buyers and 4djacent ijeighbors as
to the land uses and densitic., intended for the property.
3. Since the co-.d:-sininium iv., lair;t,as on ndrship interest in undivided pr perry, ~ve
recommend that"develolntn.nt c•rdinances and codes" be subst~tutcd wherever'
"subdrviSUm i,Ainauces or like learns appear in the annendment1l in thc'bill (pg 1, '
lime 14; page 5, line 13; pag 7. litres 21 and 23; page 12, line 22; and page 13,1 line
8). This would clarify that condominium property regimes are n~t intended to be
subject to subdivision procedure, but would ensure that development or
improvements to a property ould still be subject to the applicabe county public
health and Safety standards quire l ol'sucb development.
4. With respect to provisions regarding the "hillited common element" in Subsection r
(h) on page 2, lines 10-20, ether exceptions allay need to be inc*ed here, such its
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properties zoned for additional units where- subdivision of the pl. perty 4vould tcstilt Ira
in non-confosting lots, apatunzni zoned where detached unit's are alloW'ed, or'
where a varia: ee has been grunt-A by the county.
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kOPOSEJ) AMENDMENTS TO Htl 3365, HD 1 (co itinued)
5. The cottdomiriiutn l~r~ is intrndrd only to apply to the establishm~~ntof wntrsl p
interests in real property, not the creation of specific land use dgh~ts ass, tiled dilh j
those ownership interests. It may Le that the amendment proposed for tt~e k
definition of "condominium", that is ilfining it as a single apaAlcut (page 3, lines
7;9), could fertlher blur flits distinetiar. This might he remedied by adding
langrlati: to ti}l' pit11m2i;t" -L: initi.on that states to the effect thatlan apartment, as
u. ed in the chapter, shall mean a unit of ownership interest and d es not'yest laird
uy~e rights prstunring to the i.rtit.
An alternative strategy for clanfyin_ this matter may be to set four a new definition G
of condominium in tel:ns of a.r estate or intovest in real property, etc.' a iew
d~tinitioa of "unit" being i p(ii tlon of a prop; rty that is a eondornmium Property }3
regime to replace the existing (JAMition of %paru euC, and a nerd defin tron of
a.
"dwelling unit' to rifer to a quit intended for residential use. ~ r
6. Fhtther statutory clarification may be appropriate with respect fir Gount)'
e{rforcewent authority o n tho development of projects cstabli§h d under the
Condominium piopeny regime laic, since Chapter 514A ptimaril concells itself
with disclosure and govenlarc:e issues. If this is desired, the Office wo~iid
't r cummend that this hill b~! un ;nJed to include an amendlnent'o i ha.. r 46
Clarifying that the counties ha; c enforcement authority, Nvith respect to~oning,
development and buildini' urdht ai,.ccs and codes, over projects e'eated 4tnder
Chapter 514.
7. Page 7, line ?3, "ordinance" ;hould be hr plural form.
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